EUPillar La Caisse Regional du Credit Agricole Nord de France v Ashdown [2007] EWHC 528 (QB)

Summary

Two French judgments – one dated 6th April 2004 and another dated 4th November 2004 - were registered by Order of Master Fonatine dated 4 December 2006. There was an appeal made by the judgment debtor who argued that the first judgment (which ordered him to pay over EUR 200,000.00) was not enforceable against him in France. On 6th April 2004, the appeal was upheld by the English court. Mr Justice Tugendhat held: “24 As a matter of translation or interpretation, it is difficult to see why, given the text of the judgment, it is stated in the letter of July 28 that this judgment “condemned Mr Ashdown to pay to [the Bank] a sum of €212 593,97”. 25 The English word ‘condemn’ is not a term of art in civil law in this context. It does not, of itself, assist the court in deciding whether the judgment in relation to the €212 593,97 was enforceable in France or not. 26 In these circumstances, I accept Mr Datta's submission that there is not a dispute between French lawyers. The bank's lawyers have used an expression (‘condemns’) in relation to the debt which does not appear to be justified by the text of the judgment, whether in the original French or in the translation into English. The statement that “the judgment is enforceable” is not explained. The French lawyers consulted by the defendant have stated that in their opinion the judgment of April 6 is not enforceable in France, and an explanation is given. That has not been contradicted or explained by the bank. It is accepted that the opinion of Maitre Wogue was made available to those representing the bank in good time before this hearing. 27 In those circumstances, the bank has not shown that the condition for enforcement in England under Art.38 of the Judgments Regulation is satisfied.” [24-27] Following the judgment, a fresh evidence emerged. A certificate acknowledged that the judgment was enforceable in France. Hence, an appeal was launched against the High Court judgment. The difficult issue before the Court of Appeal related to the meaning of “enforceable” On 15th May 2007, the Court of Appeal held that the matter was to be remitted to the Master who, after obtaining further evidence would be best placed to take a view. In this context, Lord Justice Waller held: “7 […] On the evidence we have it is not possible to be clear whether the judgment is an enforceable money Judgment or whether it is simply the fixing of a sum relevant to the liquidation, as Mr Datta on behalf of Mr Ashdown submits that it is. 8 Speaking for myself, it would seem to me that ultimately this judgment, whatever it means, is a registerable judgment in the sense that it is a judgment of the French Court and it is enforceable against Mr Ashdown. But it could be enforceable in either of the two senses of the word: either in the sense that the bank would prefer it to be or in the sense that Mr Datta has submitted on the French law evidence that it is. 9 It would not be very sensible simply to register the judgment and leave the questions as to what the nature of its enforceability is to some argument with those who seek, as the bank would, to enforce it as a money Judgment. The right course, it seems to me, is to put oneself in the position of the Master, who might have had this issue identified before her, and ask oneself what the appropriate approach would have been of the Master. The appropriate approach would seem to me to be for the Master to have said, well I am not prepared to register this judgment at this stage without further clarification from the French Court as to whether this is a judgment that could have been enforced as a Money Judgment or whether it is a judgment which would be enforced simply as fixing the sum in the liquidation. The Master would in those circumstances have adjourned the matter until evidence was provided as to precisely what this judgment meant as a matter of French law.” [2007] EWCA Civ 574 [7-9].